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PROMOTIONAL AND LICENSING AGREEMENT
THIS PROMOTIONAL AND LICENSING AGREEMENT (this "Agreement"),
dated as of November 23, 1998, is entered into by and between
The Xxxxxxx Driving, Adventure, Inc., a Florida corporation
("Company"), and Xxx Xxxxxxx, an individual ("Xxx") with
reference to the following:
A. Simultaneously with the execution and delivery of this
Agreement, (i) Company and Xxx are entering into a ten (10) year
agreement for Company to pay Xxx one million (1,000,000) shares
of common stock of The Xxxxxxx Driving, Adventure, Inc., a
Florida corporation (valued at $10,000). This payment is in
return for Xxx granting, to Company a license to use Ned's name
and likeness in advertising, products and promotional materials,
as well as an agreed upon number of appearances per year and an
agreed upon number of radio and/or TV commercials, to be
specified within this document.
NOW, THEREFORE, in consideration of the obligations and
agreements contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. All capitalized terms used but not otherwise
defined herein shall have the meanings given to them in the
Promotion and Licensing Agreement.
1.1. Licensed Material. "Licensed Material" shall mean the
name "Xxx Xxxxxxx", copyrights and trademarks owned or
controlled by Xxx and any and all names, symbols, emblems,
designs, likenesses, photographs, images and visual
representations of or relating to Xxx that are approved by Xxx
in his sole and absolute discretion.
1.2. Licensed Products. "Licensed Products" shall mean any
goods, products, merchandise or other personal property that (i)
have been approved by Xxx in his sole and absolute discretion,
(ii) are manufactured or produced by or on behalf of Company,
(iii) contain, embody, depict, (whether in the product itself or
in the packaging, marketing or promotional materials) Licensed
Material in a manner specifically approved by Xxx in his sole
and absolute discretion, and (iv) are marketed, sold,
distributed or otherwise used by Company in connection with Xxx
under the terms of this Agreement. It is currently contemplated
that the types of products that may be approved by Xxx for use
as Licensed Products may include, without limitation, some or
all of the following: souvenirs, memorabilia, clothing, personal
effects, videos, books and magazines.
2.PROMOTIONAL SERVICES.
2.1 Commercials.
(a) Agreement to Perform. During the Term (as defined in
Section 4), Xxx agrees to serve without charge, but subject to
applicable union and guild minimums, as the feature actor in
four (4) commercials per year promoting the Company and the
Franchise. Each such commercial shall be no longer than sixty
(60) seconds in length and shall be produced in no more than two
(2) variations. The commercials may be aired on local or
national television or radio, or both.
(b) Consultation and Approval Rights. Company shall consult with
Xxx with respect to the nature, content (including all audio and
visual elements) and use of any commercial proposed by Company.
Xxx shall also have the right to approve in his sole and
absolute discretion such nature, content and use of such
commercial. Further, Xxx shall have the right, in his sole and
absolute discretion, to decline to perform in any commercial
proposed by Company if he reasonably believes that the content
of such commercial would be detrimental to the value of the
Licensed Material or to his image or reputation. In addition,
Company shall not broadcast a completed commercial until such
commercial has been submitted to Xxx for his review and Xxx has
in his sole and absolute discretion approved the completed form
of the commercial and the intended broadcast forum.
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(c) Scheduling and Expenses. Company shall make best efforts to
provide Xxx with at least ninety (90) days advance notice of
scheduling of proposed commercials, and such scheduling shall be
subject to Ned's professional availability. All expenses
associated with the production of the commercials, including
Ned's reasonable and customary travel expenses, will be paid for
by the Company.
2.2. Appearances. Each year during the Term, Xxx agrees,
subject to Ned's professional availability, to appear at three
(3) events such as grand openings, annual shareholders meeting
and other promotional activities.
2.3. Additional Promotional Activities. From time to time
during the Term, Company may request that Xxx provide other
promotional services for the Company in addition to those set
forth herein. Xxx may decline or accept these requests in his
sole and absolute discretion.
3. LICENSE.
3.1. Grant of License. Subject to the terms of this Agreement
Xxx hereby grants to Company for the Term (as defined in Section
4 below) a nonexclusive license to utilize the Licensed Material
throughout the world in connection with:
(a) The advertisement, promotion, solicitation and sale of
equity and debt investment in Company;
(b) The design, construction, development, promotion,
advertising, implementation and operation of the Xxxxxxx Driving
Adventure, Inc.
(c) The advertisement, promotion, solicitation and sale of
possible franchises.
(d) The design, manufacture, promotion, advertisement,
distribution and sale of Licensed Products in connection with
the Company.
4. TERM AND TERMINATION. The term of this agreement (the
"Term") shall be ten (10) years beginning with the opening, of
the first Xxxxxxx Driving Adventure driving school, unless
sooner terminated by the occurrence of any of the following:
(a) A material breach by Company of this Agreement which breach
has not been satisfied within thirty (30) days of receipt of
written notice from Xxx thereof,
(b) Upon receipt of written notice from Xxx if, as the result
of (i) any act or omission of Company, (ii) any claim or charge
against Company or (iii) any other occurrence or circumstances
involving Company, the continued association of Xxx with Company
would be detrimental to the value of the Licensed Material or to
Ned's image or reputation;
(c) The failure of Company to continually operate and manage
the business according to the policies, practices and standards
agreed to by the parties;
(d) The failure of Company to raise the Investment Capital;
(e) The failure of Company to comply with any laws and
regulations, the consequences of which are materially adverse to
Company.
5. NO COMPETITIVE PROMOTIONS. During the Term, Xxx shall not
directly or indirectly (whether for compensation or otherwise),
provide promotional appearances or services to any business
which competes with the Company's business of owning and
managing driving schools.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Representation and Warranties of Company. Company
represents and warrants to Xxx as follows:
(a) Company has the corporate power to enter into this
Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized
by its Board of Directors and no other corporate proceedings on
the part of Company are necessary to authorize this Agreement
and the transaction contemplated herein.
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(b) This Agreement has been executed and delivered by Company
and is the valid and binding obligation of Company enforceable
in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy laws or similar laws affecting
creditors' rights generally, and except in so far as the
availability of equitable remedies may be limited by applicable
law from time to time in effect.
6.2. Representations of Xxx. Xxx represents and warrants to
Company as follows:
(a) Xxx hereby has the right and power to grant to Company the
rights described herein and is free to enter into this Agreement
and to carry out his obligations hereunder.
(b) Xxx warrants that, during the Term, he will not commit any
act which brings Company into public disrepute or scandal, or
which shocks, insults or offends a substantial portion or group
of the community or reflects unfavorably on Company.
7. INDEMINIFICATION.
7.1 Indemnification Obligation. Company shall indemnify,
defend and hold harmless Xxx from and against any and all claims
arising out of or in connection with Ned's appearance in
commercials and performance of other promotional activities in
accordance with this Agreement.
8. MISCELLANEOUS.
8.1. Effectiveness of Agreement. This Agreement shall become
effective on and as of the date of execution of this Promotion
and Licensing Agreement.
8.2. Successors and Assigns. This Agreement shall bind and
inure to the benefit of Company and Xxx and their respective
successors, permitted assign heirs and legal representatives (as
the case may be) of Company and Xxx.
8.3. Assignment. Company may not assign its rights under this
Agreement to any purchaser or transferee without the prior
written consent of Xxx.
8.4. Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter
hereof and supercedes all prior and contemporaneous arrangements
or understandings with respect thereto.
8.5. Amendment and Modification: Waiver. Except as otherwise
provided herein, this Agreement may be amended, modified and
supplemented and the application of any provision of this
Agreement or any rights or obligations of any party hereunder
may be waived (either retroactively or prospectively) only by
written agreement of the parties hereto affected by such
amendment, modification, supplement or waiver. Further, any
waiver shall be effective only in the specific instance and for
the specific purpose stated in such writing.
8.6. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
8.7. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed to be a part of this Agreement.
8.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
8.9 Arbitration. Any and all disputes arising hereunder shall
be subject to resolution by arbitration.
IN WITNESS WHEREOF, the parties hereto have caused this
Promotion Agreement to be executed and delivered as of the date
first above written.
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By: Xxx Xxxxxxx
Date:2/9/99
Xxx Xxxxxxx - President
The Xxxxxxx Driving Adventure, Inc.
By: Xxx Xxxxxxx
Date: 12/21/98
Xxx Xxxxxxx
Addendum 1.0
This Addendum 1.0 is part of the Promotional and Licensing
Agreement dated November 23, 1998 between The Xxxxxxx Driving
Adventure, Inc. (the company) and Xxx Xxxxxxx (Xxx).
It is agreed upon by both parties, that the company will not
issue any additional common shares, preferred shares or warrants
in the company's stock to insiders, directors or affiliates
without Ned's approval.
At this time there are no plans for additional offerings,
however, in the unlikely event that additional capital for
growth is needed it may become necessary to issue additional
shares. These shares would result in equal dilution to the
value of each share held by all the original shareholders and
insiders. Any and all future financings will be offered to Xxx
prior to outside fulfillment.
Initialed by Xxx Xxxxxxx
2/9/99
Initialed by Xxx Xxxxxxx
1/21/98
